Opinion
Case No. 02-2177-JWL
June 11, 2002
MEMORANDUM ORDER
Plaintiff has now filed five cases all based on conduct surrounding his domestic proceedings in state court. The court has now dismissed the previous four cases and, by this order, dismisses this case sua sponte.
The Tenth Circuit"has held that a district court may dismiss sua sponte a pro se complaint for failure to state a claim." Whitney v. State of New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997). Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss, giving plaintiff notice and opportunity to amend his complaint, a court may dismiss sua sponte "when it is `patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (summarizing "the procedure and law applicable to the three most common pretrial points at which a district court may dispose of a pro se complaint," including dismissal pursuant to 28 U.S.C. § 1915 "if the plaintiff is proceeding in forma pauperis" and, independently, for failure to state a claim under Rule 12(b)(6), including sua sponte dismissal if it is "patently obvious" that the plaintiff can not prevail on the facts).
The claims made in the complaint are dismissed for failure to state a claim. The plaintiff does not allege any conduct in the complaint that, even arguably, could amount to a violation of his rights under the Constitution or laws of the United States. In the complaint, Mr. Collins simply lists the ways that he feels aggrieved by individuals and conduct related to his domestic proceedings in court. The court has patiently explained why he may not sue these individuals and entities for such conduct under section 1983 in the orders dismissing his previous four cases. Despite this, Mr. Collins continues to file complaints that obviously do not state a claim under section 1983. For example, the court has explained that only conduct under the color of law may form the basis of a claim and that, therefore, he may not sue private attorneys under section 1983. Nonetheless, Mr. Collins continues to name such private individuals in his complaints.
This complaint is no different than the previous four in that it plainly does not state a claim for relief under section 1983. Giving Mr. Collins an opportunity to amend the complaint would be futile because it is obvious that he has no claim under section 1983 based on the facts alleged in this or any of his previous four complaints. Any claim that Mr. Collins may have, as this court has explained before, would not arise under federal law or exist between citizens of different states. Because Mr. Collins has simply ignored the explanation given by the court in dismissing his previous four lawsuits, the court infers that Mr. Collins continues to file these lawsuits for the purpose of harassing the defendants. Because of this, the court has decided to take the unusual action of dismissing the complaint sua sponte.
IT IS THEREFORE ORDERED that plaintiff's claims against all defendants are dismissed by the court sua sponte.